Scottish Court of Session Decisions

Subject_1 PART I.

PERSONAL AND REAL.

William Wallace Pursuer,
v.
John Osburn Brown, Writer to the Signet, Trustee for the Creditors of Robert Smith, Builder in Edinburgh, Defender

Date: 21 June 1808
Case No. No. 4.

Of two conterminous proprietors, one built a mutual gable, and the other became bankrupt without paying for his proportion of it. The former was found to have a preferable claim to the expense of the gable upon the price of the property adjoining, and forming a part of the bankrupt's estate.

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When that part of the New Town of Edinburgh, consisting of Heriot-Row, and lying to the north of Queen Street, was projected, a plan was adopted, which contained the elevation of each house, and obliged the builders to have mutual chimney tops and gables.

When the execution of this plan was begun, the trustees of Heriot's Hospital, the superiors of the ground, had been in the practice, where one area was feued out, to pay the half of the mutual gable when the house was finished. This was done with the view of having the street finished with the more expedition; and the Hospital had an opportunity of being indemnified when the next area was feued out.

The Hospital altered this arrangement; and exposed certain lots with the following condition:—

“1st, That the purchasers of the several lots shall be bound and obliged to carry up the respective buildings to the level of the street, and to complete the cellars and side pavement, between and the term of Candlemas 1804, and to have their houses completely roofed in between and the term of Martinmas 1804, and that under the liquidate penalty of L. 100, to be paid to the treasurer of the said Hospital by the purchaser of each lot, over and above performance, 2d, That the exposers are not to be at any expense for building mutual gables, but the purchasers shall have their recourse for the half of any mutual gables, upon the persons purchasing the adjoining area, who shall be bound to pay the same when the said contiguous purchaser begins to build, with interest thereafter.”

Two conterminous areas were purchased; the one on the east by Robert Smith, the bankrupt,—the other, on the west, by William Wallace, the pursuer. Smith was not infeft.

On his area the pursuer built a dwelling-house, of which the gable and garden-wall were mutual with his neighbour Smith; and Smith became bankrupt, without either paying the proportion of this mutual wall due by him, or building a house on his area.

Mr Osburn Brown, having been appointed trustee on the sequestrated estate, exposed the subject to sale, under a declaration, that “half of the mutual gable on the west is to belong to the purchaser;”—the defender thus taking on himself the question respecting the expense of the mutual gable. The pursuer became the purchaser. The trustee refused to prefer the pursuer for the half of the mutual wall; upon which he raised an action for the price; and the cause having been debated before Lord Craig, Ordinary, the following interlocutor was pronounced, (11th December 1806.)—“On hearing parties, find, that although there is a debt due to the pursuer for the erection of the gable in question, yet he has no preference on the subjects in question therefor.”

The Court differed in opinion from the Lord Ordinary. By the plan prescribed to the feuar, any person building a house in this situation must erect a mutual gable. This proceeds not on any contract with the conterminous heritor, but from the necessity of his situation. The ground on which the mutual gable stands is common, mutual, and indivisible; and therefore there is no room for the maxim, inædificatum cedit solo. The gable, in fact, was the property of Wallace the builder, till paid for; and till then he had a right to prevent Smith, or his trustee, from using it, or adjecting to it any building.

The Court altered the interlocutor of the Lord Ordinary; and found the pursuer entitled to retain the price or cost of erecting one half of the gable in question; and, on advising a reclaiming petition, and answers, adhered, 21st June 1808.

Lord Ordinary, Craig. Act. Geo. Jos. Bell. Alt. D. Douglas et J. Harrowar. Agent Rich. Cleghorn & J. Os. Brown. Clerk, Ferrier. Fac. Coll. No. 57. p. 215.